Goodwin Liu told senators today that he showed "poor judgment" in the concluding paragraph of his 2006 testimony against the confirmation of Justice Samuel Alito Jr., further backing away from a statement that threatens to sink Liu's own judicial nomination.
Liu was asked about the 2006 statement several times as he testified during his second confirmation hearing for a spot on the U.S. Court of Appeals for the 9th Circuit. In one exchange, Sen. Tom Coburn (R-Okla.) asked, “Is that a case of poor judgment? Or is it a case of just lack of knowledge and insight?”
“Senator, it was a case of poor judgment,” Liu responded.
At another point, Liu said his conclusion about Alito was “unduly harsh” and inappropriate. “I should have omitted that paragraph,” Liu said, in response to a question from Sen. Dianne Feinstein (D-Calif.). “And quite frankly, senator, I understand now more than I did then that strong language like that is not very helpful in this process.”
Liu went further than he did in April 2010, during his first confirmation hearing before the Senate Judiciary Committee. He said then that his 2006 testimony used “unnecessarily flowery language,” but Republicans pointed to it as evidence Liu doesn’t have the temperament that a judge needs.
In the paragraph in question (PDF, final page), Liu attacked Alito’s record as a federal circuit judge in law enforcement cases. He said Alito’s record “envisions an America” where, among other tragedies, “police may shoot and kill an unarmed boy to stop him from running away with a stolen purse.”
Liu’s latest concession did not win him any public support from Republican senators. But by the end of 90 minutes of questioning, Democrats including Feinstein had reiterated their strong support of Liu’s nomination and Coburn said he would meet with Liu personally to talk further. Feinstein said she regretted that, among Republicans, “only one member has sat down” with Liu.
Several commentators have mentioned Liu as a potential future Supreme Court nominee, but Republicans have not ruled out filibustering his 9th Circuit bid. His nomination did not come to the Senate floor last year.
Sen. John Cornyn (R-Texas), echoing the sentiments of other Republicans, said he could not be sure that Liu was both capable of transitioning from advocacy to the judiciary and sincere in his desire to do so.
“He may be making a good-faith representation about his intentions,” Cornyn said. “I’m just saying you can’t ignore a body of scholarship like this expressing strongly held views” on a variety of subjects.
Other Republicans questioned Liu’s experience and judicial philosophy. Democrats argued that political polarization was driving the opposition, and that Liu’s background is comparable to that of several Republican-appointed circuit judges. “I don’t think he has gotten a fair shake,” Feinstein said.
The hearing was a chance for three newly elected senators to question Liu. Sen. Mike Lee (R-Utah), elected last year after campaigning against expanding congressional powers, asked Liu about his writing that the Supreme Court’s commerce-clause jurisprudence is incoherent.
Liu responded that he would be able to work around the “gray edges” of the Court’s decisions. “In the main, I think these are workable in the role I would be filling if confirmed,” he said. (Lee is a former Alito clerk, but he didn’t bring up the 2006 testimony.)
Two other new senators, Richard Blumenthal (D-Conn.) and Chris Coons (D-Del.), gave Liu opportunities to comment on hot-button social issues. In response to their questions, Liu rejected the idea that courts could recognize a fundamental right to welfare and he said that affirmative-action programs are a “time-limited remedy.”
Joining Liu for the hearing was William Coleman, who served as transportation secretary in the Ford administration and who worked with Liu at O’Melveny & Myers. Reps. Judy Chu (D-Calif.), Doris Matsui (D-Calif.) and Bobby Scott (D-Va.) sat with Coleman.